ADIMAKUNNI Vs. KONA

JUDGEMENT

(1.) THIS is an appeal by a workman under Section 32 of the Cochin Workmen's Compensation Act from the order of the commissioner rejecting his claim for compensation in respect of personal injury caused to him by an accident that arose out of and in the course of his employment. The accident which resulted in his injury took place on 8th February 1944. According to the appellant, on that day in the course of his work under the first respondent while he was arranging the loaded bags in the steamship known as 's. S. Kalmarsund' the sling on the crane carrying the bags broke and the bags fell on the ankle of his left leg breaking the bones. The 1st respondent is the agent of the shipping company. Respondents 2 to 5 are the legal representatives of one Abdulla Ummer (deceased) who was the contractor under the first respondent at the time of the accident. The appellant preferred a claim before the commissioner for compensation under the Workmen's Compensation Act. The application was filed only on 12-11-1122. On 14-12-1122 the commissioner examined the claimant and passed an order that. in the circumstances the delay is filing the application for compensation is condoned. Thereafter notice of the application was issued to the respondents. They pleaded that the application was time-barred and also denied their liability to pay compensation. The learned commissioner who decided the case was the successor in office to the commissioner that passed the order condoning the delay in preferring the claim, He was of the view that the question whether the failure to institute the claim in due time as provided in Sub-section (1) of Section 10 of the Act was to be determined only at the time of deciding the case after notice to the counter-petitioners. Therefore he reconsidered that question in spite of the prior order in case and held that the claim was time-barred and dismissed the petition on that ground, after recording the findings that the amount awardable as compensation is Rs. 1,890 and the person liable therefor is the first respondent.

(2.) IT is seen that from the date of the accident for 63 days the appellant was treated as an in-patient in the Maharaja's hospital at Palluruthy. Thereafter, he appears to have been removed to the eighth respondent's house. It is dear from the evidence that at the time of the discharge of the workman from the hospital his fractured bones had not properly set in and the wounds had not been healed. It was not at all possible for him to walk. He could only crawl about. It was in this condition that he was removed from the hospital to the house of the eighth respondent. Evidently the respondents thought that some other line of treatment could be tried. The petitioner swears that for nearly 2? years he was in the house of the eighth respondent undergoing treatment under some native physicians with hardly any appreciable improvement. According to him the eighth counter-petitioner and others held out hopes that proper compensation would be paid to him and that disabled as he was from moving about he remained patiently placing implicit faith in their words. He also states that he was virtually under wrongful confinement and that for this reason also he was prevented from preferring his claim before the commissioner in time. Though this latter story appears to be an exaggeration the evidence in the case especially that of PWs. 2, 3 and 4 amply bears out the fact that for over two years from the date of his discharge from the hospital, the appellant was undergoing treatment in the house of the eighth respondent and that during that period he was not in a position even to move about. This is sufficient to establish that the appellant had sufficient cause in not preferring the claim within one year of the date of the accident as enjoined under Section 10 (1) of the Act. It is also clear from the evidence that the eighth respondent, under whose care the petitioner was, instead of helping him to prefer a claim before the proper authority was holding out hopes to him that he will see that proper compensation is paid to him by the first respondent. In fact it has come out in evidence that the first respondent actually paid Rs. 540 to the deceased Abdulla Ummer, the father of the eighth respondent, on 18. 8. 1945.

(3.) THE learned commissioner has failed to take into consideration any of the above facts in deciding the question of sufficient cause for filing the claim out of time. The only fact that weighed with him was Ext. I filed by the appellant before the first respondent on 18th July 1946 and the delay thereafter in preferring the claim. It appears to us that the learned commissioner was labouring under an erroneous view that the appellant should not only show that there was a reasonable cause for not filing the claim within one year but must also give satisfactory explanation for the delay that has occasioned thereafter in preferring it. The provisions of Section 10 (1) of the Cochin Workmen's Compensation Act as amended are similar to those contained in Section 10 (1) of the Travancore Workmen's Compensation Act. In a case under the Travancore Workmen's Compensation Act reported in Chengannoor Konni Motor Union Ltd. v. M. O. John (1950) 5 D. L. R. Travancore-Cochin 393: the identical question came up for consideration and this Court had held that If there was sufficient cause for not filing the application before the commissioner within one year then the bar created under the statute is altogether removed and that the question of any further delay does not arise. When once the workman has shown sufficient cause for not instituting the claim within one year then there is nothing in the Workmen's Compensation Act or any other law which debars the commissioner from entertaining the claim for compensation.